Travel Ban II Still Discriminates

The public outcry over the Trump Administration’s travel ban directed against citizens of seven predominantly Muslim countries has largely subsided. While this is understandable, the Trump Administration’s efforts to institute a revised version of the ban have not disappeared. Moreover, the efforts might ultimately prove successful, in a manner that will have deleterious results for Muslims living in the United States, and those seeking sanctuary within our borders.

Before explaining why this is so, it is important to review briefly what has transpired to date concerning the partial Muslim ban, and where things lie legally. President Trump’s initial executive order denied entry into the United States of nationals from Iraq, Iran, Syria, Yemen, Somalia, the Sudan, and Libya for a period of 90 days, and it suspended the refugee program for a period of 120 days for most refugees, but indefinitely for Syrian refugees.

The administration drafted the order hastily, and without notice to the very agencies who would be asked to implement it. Because of this carelessness, the earliest legal decisions, and indeed even the Ninth Circuit decision that upheld a nationwide injunction on the travel ban, did not actually need to address the religious discrimination that the ban obviously intended. While the Ninth Circuit did express concerns about religious discrimination, it was easier and more straightforward for it to rely instead on the constitutional requirement of what is known as “due process.” The lack of notice, the idea that the ban covered travelers en route, and the fact that it encompassed permanent residents of the United States, who have long been deemed to have some constitutional protection, made due process a much easier ground to stay the order.

When the Trump administration revised its order, however, the problem of religious discrimination became much more central legally. This is because the revised ban did include notice, excluded current visa holders as well as legal permanent residents, and removed language in the first order that suggested that Christian refugees would be given preference over Muslim refugees when the program resumed. (It also removed Iraq from the banned countries list.) Two separate Federal District Courts, one in Maryland and one in Hawaii, have ruled against the Trump administration on this matter, holding that the executive order is indeed a form of Muslim ban. The Trump Administration has appealed, and the Ninth Circuit will review the Hawaii order this month.

In issuing injunctions against the ban, the courts have made two important points that emphasize some of its pernicious effects. The first of them is that the ban’s discriminatory intent is obvious because of repeated statements made by members of the Trump administration, including the President himself, denigrating Islam and expressing an intent to ban Muslims from entry. The second point is that the mere fact that one does not discriminate against every single member of a group does not mean that one is not engaged in discrimination against that group. Imagine, for example, a large corporate conglomerate with tens of thousands of workers that decided to lay off 15% of its work force, where the vast majority of the discharged employees happen to be women. It would be extremely odd to suggest that this conglomerate was not engaged in an act of discrimination just because other women continued to be employed by it in some capacity.

These wise arguments from our federal courts draw attention to the dangers that continue to lurk, should the ban be reinstituted. Quite obviously, it is a stain on America’s moral conscience to deny admission to so many refugees and citizens of foreign states on the misguided assumption that they all pose such a pervasive national security threat that none of them can be safely vetted. In addition, the ban is a legitimization of discrimination against Muslims already in the United States. The fact that it does not take direct action against them is not the point. This ban is the product of a litany of statements issued by the President and his closest allies denigrating an entire religion and its adherents. Furthermore, it is designed to target Muslims. If this form of discrimination is permitted by our courts to stand, then the dangers to the Muslim community are legitimized and can only proliferate. When added to the spike in hate crimes directed against Muslims and those perceived to be Muslim, and the rising Islamophobia across the Western world, this executive order is cause for extreme concern for defenders of equality everywhere.

Haider Ali Hamoudi is a Professor of Law at the University of Pittsburgh where he is the Associate Dean of Research and Faculty Development.